If you host a website that allows the public to post comments, you may be surprised to find out that you may sued if a stranger posts defamatory comments on it.

The liability of website hosts for user generated defamatory content

In Canada, when a statement is posted online that defames another person (i.e., the statement would tend to lower the reputation of that person), the publisher of the statement may be held liable for defamation. The issue of who is a “publisher” of an online defamatory statement has been the subject of much debate, particularly in the context of user generated content. It is clear that the person who authored the statement and posted it on the website would be liable for the defamation. However, does this liability extend to the host of that website?

That issue was decided in the Ontario case of Smith v Baglow. That case involved an online political forum called “Free Dominion”, which was hosted by the defendants Mark and Connie Fournier. The Plaintiff, Mr. Baglow, was a rival political blogger whose views were often in conflict with those posted on Free Dominion. When anonymous comments were posted on Free Dominion that were allegedly defamatory of Mr. Baglow, he sued the Fourniers for defamation.

In their defence, the Fourniers argued that they were not liable because they were not “publishers” of the allege defamatory comments. Rather, the Fourniers argued that “they did not write, edit, modify or in any way participate in the writing or posting of the impugned words or any of the comments in the thread. They submit that they are simply the operators of Free Dominion. It is the message board software that allows users to register. There is no intervention from the operators themselves. Any registered person can post and start a thread.”

The trial judge disagreed with the Fourniers’ position. She found that, as the hosts of Free Dominion, the Fourniers were liable for publishing the defamatory comments posted by their users. In her reasoning, Justice Polowin stated: “The evidence reveals in this case that almost all of the individuals who post or comment on Free Dominion do so anonymously. To adopt the position of the defendants would leave potential plaintiffs with little ability to correct reputational damage and would impair that delicate balance.”

What does this mean for your website?

If you or your organization has a website that allows users to post comments (anonymously or not), you may be held liable for defamatory comments posted on the website. This also includes social media sites that your organization may host, (such as Facebook pages or group LinkedIn pages). There are a number of things you can do to mitigate this risk and potentially avoid liability.

One of the factors that may have contributed to the finding of liability in the Smith v Baglow case was the fact that Free Dominion was a political forum that had been known to be contentious. Indeed, the Judge began her decision with the following statement: “Political debate in the Internet blogosphere can be, and, often is, rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar. It is not for the faint of heart.” Thus, if your website is one that would reasonably give rise to potentially libellous statements (not necessarily in the political sphere), you should be monitoring it regularly. When comments that appear to be defamatory or derogatory appear on the website, you should remove them. You may also wish to include a “report abuse” option, which allows users to report potentially problematic comments.

In addition, when you are placed on notice of an allegedly defamatory comment (e.g., you receive a notice from someone complaining about a comment, or someone clicks of the “report abuse” option), remove the comment as soon as possible. If you do so and are later faced with a defamation lawsuit, you may raise the defence of “Innocent Dissemination”. This legal defence may be available to website hosts that remove the defamation as soon as they become aware of it.

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Maanit Zemel is a commercial litigator admitted to practice in Ontario and New York, with substantial experience and expertise in Internet and social media law, including Canada’s Anti-Spam Legislation (CASL), privacy, online defamation, cyberbullying and cyber-security.

As a public policy question, I’d much prefer the position of the US, “No provider or use of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

As a practical matter, I tend to hew to your standard, and in particular, do not retain ephemeral comments made by individuals, some of which are quite insulting.